× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA - Should the DWP always carry out a medical when determing fitness for work!

 < 1 2 3 > 

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

I recall a little while ago that ATOS were not going to call more people to the WCA, it was in the news section. Also no further reassessments were going to be carried out. Therefore if the Govt are saying that they won’t be calling people to WCA then Reg 38 IS A DODO.

So it would then all be down to the DM, so as I have said along with others, if the DM see’s enough/sufficient evidence for SG then SG it is, if not then WRAG. If client disagree’s then as Martin points out you can request the Tribunal Service to carry out a medical but again that is discretionary too. Otherwise client will have to ask for a Mandy (MR) lose benefits until Mandy’s arrive, then Benefit back in payment and appeal starts. I think that’s right!!!

J.Mckendrick
forum member

Welfare Benefits Team - Phoenix & Norcas

Send message

Total Posts: 279

Joined: 16 March 2012

Yes I agree Reg 38 states ‘may’ oppose to ‘must’ as what’s the point sending a client to a medical examination if the DM is happy to grant SG status from the outset. Only if the DM is not happy to grant SG status with the evidence in front of him/her is when the examination is required (ie if no examination at all has been carried out). Your examples are where clients have had medicals and where they have been placed in the work related group or where the client appeals to the Tribunal for SG status without a “further medical.” My point is that a DM cannot make a negative decision (ie failure to grant work group or SG status) without the client attending a medical.

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

J.Mckendrick - 03 April 2014 03:49 PM

Yes I agree Reg 38 states ‘may’ oppose to ‘must’ as what’s the point sending a client to a medical examination if the DM is happy to grant SG status from the outset. Only if the DM is not happy to grant SG status with the evidence in front of him/her is when the examination is required (ie if no examination at all has been carried out). Your examples are where clients have had medicals and where they have been placed in the work related group or where the client appeals to the Tribunal for SG status without a “further medical.” My point is that a DM cannot make a negative decision (ie failure to grant work group or SG status) without the client attending a medical.

The consequence of this is that if I were to make a claim for ESA for a few weeks off teh back of a 13 week sicknote then write “I’m better now thank you very much” on the ESA50 but don’t expressly withdraw the claim the DM would be compelled to send me for a medical… That cannot be the case!

The scheme operates to give the DM discretion to determine the claim either way without the need for an examination and there is good reason why that’s the case.

J.Mckendrick
forum member

Welfare Benefits Team - Phoenix & Norcas

Send message

Total Posts: 279

Joined: 16 March 2012

If you return the ESA50 after the termination of your sick note then the claim stops in any event. If you put in the ESA50 that you are now recovered and therefore capable of carrying out all the descriptors then yes what’s the point going to the medical. NB you may still get a client with severe mental health issues who doesn’t know how to complete the ESA50.

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

“My point is that a DM cannot make a negative decision (ie failure to grant work group or SG status) without the client attending a medical”.

I agree with that insofar as to a decision as to whether the claimant has LCFW.  I don’t agree, as a matter of law, regarding a review/appeal to that decision as to why he doesn’t have LCFWRA.  First, because reg 38 is discretionary.  But second, and more importantly, the DM has already decided that he doesn’t have LCFWRA because of a medical examination that has already recently been carried out.  It would be entirely different in a case where a claimant asks for a supersession based on a change of circ’s as the previous medical report would be partially or completely out of date.

Martin Williams
forum member

Welfare rights advisor - CPAG, London

Send message

Total Posts: 769

Joined: 16 June 2010

How is this argument going to assist your client even if it is correct?

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

J.Mckendrick - 03 April 2014 12:34 PM

Dear Martin - thanks for the reply and yet again this evidences how badly this regulation has been written. Reg 36(1) header is…

“Information required for determining capability for work-related activity”

Reg 36(1)(b) is identical to that of Reg 21(c) where Judge Jacobs confirms in paragraph 19 of CE/1467/2013 that 21(c) is in fact the ATOS medical. Therefore if the Decision Maker is in any doubt in actually awarding Support Group status with the info in front of him/her, then he/she is bound to have an ATOS medical take place. I believe it is in order for the DM to make an award to the SG without an ATOS medical but cannot refuse SG status without the results of such a medical examination.

No

19. Decisions are taken in the name of the Secretary of State by decision-makers. They base their decisions on evidence and information. This is covered by regulation 21:
21 Information required for determining capability for work
(1) Subject to paragraphs (2) and (3), the information or evidence required to determine whether a claimant has limited capability for work is—
(a) evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement or other evidence required in each case);
(b) any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire; and
(c) any such additional information as may be requested.
Subparagraph (c) is supplemented by section 19 of the Social Security Act, which authorises the Secretary of State to refer a claimant to a health care professional for ‘such examination and report as appears to the Secretary of State to be necessary for the purpose of providing him with information for use in making the decision.’ The report from ATOS is information within subparagraph (c) and section 19. The report consists of matters of fact, such as the clinical findings made on examination, and matters of opinion, such as the health care professional’s identification of the relevant descriptor for each activity. The decision-maker is required to decide whether or not to accept those matters of fact and opinion. If the decision-maker does accept them, they become part of the determination of capability for work and, ultimately, of the decision on entitlement to an employment and support allowance.

UTJ Jacobs finds that the ATOS examination is merely information that contributes toward a determination. The assessment does not consist solely of a medical.

 

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

36.—(1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is–

(a) any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and

(b) any such additional information as may be requested.

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work-related activity without the information specified in paragraph (1)(a), that information must not be required for the purposes of making the determination.”


Note, from 28/10/13 the word “must” was substituted in para (2) for “will” by Reg 13(18) of SI 2013/2536.  Not sure if that really makes a difference for present purposes (the Blue Volumes still show the previous version of para(2)).

You’re saying that if a DM is satisfied that a person is not in the SG (and para(2)‘s use of the word “whether” allows the DM to be satisfied either way) then he has to send the person for a medical because para (2) only knocks out para (1)(a) whilst leaving (1)(b) (best Geezer voice) in play.  That cannot be right.  Just because a UT judge confirmed that a medical was one piece of evidence that could conceivably be requested under (1)(b) doesn’t mean that there won’t be sufficient other evidence available to justify a decision refusing the SG.  The GP sick note is likely to be available in most cases and it alone might be enough.

Reg 36 is silent about evidencing SG status based on, eg, substantial risk to health.  The word “such” in (1)(b) arguably referring to the descriptors mentioned in para (a).  Does that mean that the DM must send the person for a medical where they’re asserting substantial risk? 

Sch 3 is a legal test, ultimately, and one which has to be satisfied on the balance of probabilities (51%).  Other evidence that could satisfy (1)(b) could be an Atos opinion requested by DM re the likelihood of claimant being in SG based purely on the medical condition disclosed in his/her ESA1 or sicknote.  So yes there needs to be some evidence but the threshold is low I’d say.  Let’s say a DM goes to work in a bad mood and decides that of the first 10 cases on his desk none are going to get into the SG, basing his decision solely on their respective diagnoses (para (1)(b) doesn’t appear to bar any evidence, such as a diagnosis, that may have been requested at the outset of the claim).  On appeal, the tribunal could simply listen to the claimant and treat that oral evidence as sufficient to award SG status without ordering a medical.  Evidence does not have to be medically corroborated if it is inherently believable, not improbable etc.

Have to say, I’m a little concerned by that “must” replacing “will” in (2) above.  Seems to reduce the DM’s discretion not to require an ESA50 at very least.  The Explanatory Memorandum to the above SI stated that the changes to ESA Regs including the insertion of “must” into Reg 36 were no more than “general housekeeping amendments”.  To the extent that the change could appear to benefit a claimant by allowing him/her to argue, eg, that a DM’s adverse inference from a diagnosis re the SG was not sufficient to deny the claimant the opportunity in an ESA50 to persuade the DM otherwise, then even that would not be a freestanding ground for a tribunal to allow an appeal.  The tribunal would re-hear the case as normal.  As Martin suggests, I’m not sure what a legal type argument in this type of context would achieve.

Edit: I think that word “must” does increase the evidential threshold mentioned above, not just for ESA50s but, by implication, for other evidence.  In theory, it could in one sense offer more protection to an unrepresented claimant.  But a right or protection is worth little if it is not enforced.  And the environment in which such rights are ultimately enforced is still an inquisitorial one where the burden of proof is a last resort and, as a general rule, legal arguments will not be accepted if the flaws in evidence that they highlight are issues of fact which can be corrected by a tribunal.  “Must” doesn’t mean the DM has to be 90% certain that an ESA50 is not needed before not requesting one.  It’s still 51%.

[ Edited: 3 Apr 2014 at 09:07 pm by Tom H ]
Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

These two cases

CE/2894/2011 [2012] UKUT 256 (AAC) states that if a tribunal prefers the opinion of health health care professional because of his or her“experience” it must give evidence in support of this.


CE/3883/2012 [2013] UKUT 269 (AAC) raises questions about the use of health professionals on Atos Work Capability Assessments where they have no expertise on the claimant’s health condition, suggesting the evidence has “no probative value”.

http://disabilityrightsuk.org/how-we-can-help/benefits-information/law-pages/case-law-summaries/employment-and-support-allowance#sthash.5v1EOFMK.dpuf

So if UTJ states there report [asked for by the SoS] is worthless, then how will this benefit the DM’s decision?

Doesn’t it mean the DM could have made a determination either on the ESA1 or on the ESA50?

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

Bryan R - 04 April 2014 10:30 AM

These two cases

CE/2894/2011 [2012] UKUT 256 (AAC) states that if a tribunal prefers the opinion of health health care professional because of his or her“experience” it must give evidence in support of this.


CE/3883/2012 [2013] UKUT 269 (AAC) raises questions about the use of health professionals on Atos Work Capability Assessments where they have no expertise on the claimant’s health condition, suggesting the evidence has “no probative value”.

http://disabilityrightsuk.org/how-we-can-help/benefits-information/law-pages/case-law-summaries/employment-and-support-allowance#sthash.5v1EOFMK.dpuf

So if UTJ states there report [asked for by the SoS] is worthless, then how will this benefit the DM’s decision?

Doesn’t it mean the DM could have made a determination either on the ESA1 or on the ESA50?

It’s important to note that CE/3883/13 only refers to physiotherapists reports in the context of mental health assessments.

S.Murphy
forum member

Area benefit officer - Kent County Council Social Services

Send message

Total Posts: 38

Joined: 21 June 2010

CE/366/13 and CE/705/13 are two UT cases relating to whether an IB to ESA migration WRAG decision which doesn’t clearly identify the points relevant under Schedule 2 is legally valid.

As far as I know know these are still outstanding - we’ve had a number of appeals against WRAG on migration decisions with no medical with a view to gaining Support group status where the DWP submission asks for the appeal to be held pending the outcome of these UT cases. None have been held to date, and the DWP have acted on the successful appeals.

There was also CE/3186/2012 - http://www.osscsc.gov.uk/Aspx/view.aspx?id=3819 which looked at the same issue and decided it was a non-issue.

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

fao Dan M

But doesn’t the first ruling seemingly contradict the 3883? So a physiotherapists report would be substantial enough.

These two rulings seemingly contradict each other.

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

I don’t think they do; in 2894 2011 the Tribunal followed a HCP’s report and offered no reason for rejecting the appellant’s evidence other than the HCP was “experienced”. That’s a lack of reasons… essentially insufficient facts.

In 3883 13 UTJ Mark criticized a Tribunal in not properly weighing the appellant’s evidence against the opinion of a physiotherapist in a mental health case where the physio plainly had no expertise and held, as a matter of principle that someone with no experience of MHPs could not provide any weighty opinion on MHPs, thus the Tribunal came to the wrong conclusion in application of rules of evidence. That is a question of law

1964
forum member

Deputy Manager, Reading Community Welfare Rights Unit

Send message

Total Posts: 1711

Joined: 16 June 2010

Martin Williams - 03 April 2014 04:38 PM

How is this argument going to assist your client even if it is correct?

Forgive me if I resurrect Martin’s post. I was wondering exactly the same.

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

In 2894 it states “tribunal prefers the opinion of health health care professional”

Question is why would a tribunal “prefer” the ATOS HCP’s report more than medical evidence supplied by a doctor on the ESA 50

And could prefer equate to weighing?